Southwell v. Summit View of Farragut
Filing
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MEMORANDUM AND OPINION as set forth in following order.Signed by District Judge Thomas A Varlan on 7/15/11. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ROBIN SOUTHWELL,
Plaintiff,
v.
SUMMIT VIEW OF FARRAGUT LLC,
Defendant,
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No.:
3:10-CV-550
(VARLAN/SHIRLEY)
MEMORANDUM OPINION
This civil action is before the Court on defendant, Summit View of Farragut LLC’s
(“Summit View’s”), Motion for Summary Judgment [Doc. 5], brought pursuant to Rule
12(b)(6) and Rule 56(b) of the Federal Rules of Civil Procedure. In the motion, Summit
View asserts that plaintiff, Robin Southwell, has failed to establish the essential elements of
her medical malpractice claims by failing to comply with the requirements of the Tennessee
Medical Malpractice Act (“TMMA”), T.C.A. §§ 29-26-115, et seq., and has failed to state
a claim for which relief may be granted under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seq. (the “ADA”). Summit View asserts that because plaintiff has failed to state
a claim for which relief may be granted under these statutes and because there are no material
issues of fact in dispute, Summit View is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 12(b)(6); Fed. R. Civ. P. 56(b). Plaintiff has filed a response in opposition,
arguing that she has complied, or still has time to comply, with the requirements of the
TMMA and that she has established all other essential elements of her claims.
The Court has carefully reviewed the pending motion [Doc. 5], the supporting,
opposing, and reply briefs [Docs. 6, 9, 10, 11, 13], the relevant documents and exhibits, and
the controlling law. For the reasons set forth herein, and because the Court finds that
plaintiff has failed to establish any claim for which relief may be granted, Summit View’s
motion [Doc. 5] will be GRANTED, plaintiff’s clams will be DISMISSED, and this case
will be closed.
I.
Background
The following factual allegations arise from a time in which plaintiff’s decedent,
Claudia Adkins (“Adkins”) was under the care of Summit View, a nursing home [Doc. 1-1,
¶ 1]. Adkins arrived at Summit View on December 11, 2009 after being transferred from the
Tennessee Medical Center [Id., ¶ 2]. Plaintiff alleges that while Adkins was in Summit
View’s care, it failed to do the following: provide Adkins with an interpreter;1 place her in
a suitable room; properly care for her pre-existing emphysema and cancer; and promptly
inform the supervising nursing home physician of her condition [Id., ¶ 11]. Such conduct,
plaintiff asserts, constitutes a failure on the part of Summit View to follow the applicable
standard of medical care [Id.]. Plaintiff alleges that this failure to follow the applicable
standard of medical care resulted in increased medical expenses, conscious pain and
suffering, mental anguish, permanent physical injuries, and ultimately, Adkins’s death [Id.,
¶ 13].
1
Adkins was deaf and blind [Doc. 1, ¶ 11]
2
On November 23, 2010, plaintiff filed a complaint [Doc. 1, ¶ 1] in state court
containing allegations of medical malpractice and an alleged violation of the ADA [Doc. 1-1,
¶ 4]. Summit View removed the case to this Court based on diversity jurisdiction [Doc. 1,
¶ 5] and filed the instant motion [Doc. 5]. In the motion, Summit View contends that
plaintiff has not properly complied with the TMMA’s notice requirement, T.C.A. § 29-26121, or the TMMA’s requirement that a certificate of good faith be filed in any medical
malpractice action in which expert testimony is required, id. § 29-26-122. Summit View also
contends that plaintiff has not stated a claim for which relief may be granted under the ADA.
In response, plaintiff contends that she has complied with the notice provision of the TMMA
by sending a notice of claim letter to Summit View [Docs. 9, 9-1], and that she still has time
to comply with the certificate of good faith requirement [Doc. 9, ¶ 2].2
II.
Analysis
A.
Standard of Review3
The Court will treat Summit View’s motion as a motion to dismiss pursuant to Rule
12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
2
The Court notes that at the time of this order, plaintiff has still not complied with the
certificate of good faith requirement.
3
Summit View brought its motion pursuant to Rule 56(b) which provides that “[u]nless a
different time is set by local rule or the court orders otherwise, a party may file a motion for
summary judgment at any time under 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b).
Because Summit View filed its motion pursuant to Rule 12(b)(6) as well as Rule 56(b), despite
titling it only as a motion for summary judgment, and because the Court finds that Summit View’s
arguments are brought in terms of plaintiff’s failure to state a claim, the Court will treat Summit
View’s motion as a motion to dismiss. See Fed. R. Civ. P. 12(b)(6).
3
Procedure operates to test the sufficiency of the complaint. See Fed. R. Civ. P. 12(b)(6). The
first step in testing the sufficiency of the complaint is to identify any conclusory allegations.
Ashcroft v. Iqbal, — U.S. — , — , 129 S. Ct. 1937, 1950 (2009). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That
is, “a plaintiff's obligation to provide the grounds of [his or her] entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. Although the Court must accept all
well-pleaded factual allegations of a complaint as true for purposes of a motion to dismiss,
the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Id.
After assuming the veracity of all well-pleaded factual allegations, the second step for
the Court is to determine whether the complaint pleads “a claim to relief that is plausible on
its face.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). A claim is facially
plausible when the plaintiff “pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949
(citing Twombly, 550 U.S. at 556).
B.
Rule 11 Sanctions
At the time Summit View filed the instant motion, it correctly asserted that plaintiff’s
attorney was not, and had never been, a licensed attorney in the state of Tennessee. By not
having a properly admitted attorney sign the complaint, Summit View asserted, plaintiff’s
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complaint should be dismissed and stricken from the record pursuant to Rule 11(a) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 11(a). Following the filing and
briefing of Summit View’s motion, however, plaintiff’s attorney filed a motion to appear pro
hac vice in this action [see Doc. 7]. That motion having been granted [see Doc. 13], the
Court finds Summit View’s argument for dismissal on this ground to be moot.
C.
The Tennessee Medical Malpractice Act (the “TMMA”)
In her complaint, plaintiff alleges that her claims fall under, “Tennessee statutes
pertaining to medical malpractice” [Doc. 1, ¶ 4]. While not explicitly pled, for the reasons
set forth below, the Court finds plaintiff’s claims and allegations to fall under the TMMA.
See T.C.A. §§ 29-26-115, et seq.
The Tennessee Supreme Court has noted that medical malpractice is but a particular
type of negligence and when a negligence claim arises from injuries resulting from negligent
medical treatment, the action is one for medical malpractice. Gunter v. Lab. Corp. of
America, 121 S.W.3d 636, 639-40 (Tenn. 2003) (noting that the TMMA “essentially codifies
the common law elements of negligence”). The codified sections of the TMMA give the
common law elements of negligence insofar as they are to be applied in medical malpractice
actions. Gunter, 121 S.W.3d at 639-40; see T.C.A. § 29-26-115. The Tennessee Supreme
Court has also noted that “when a claim bears a substantial relationship to the rendition of
medical treatment by a medical professional, the medical malpractice statute is applicable.”
Gunter, 121 S.W.3d at 641.
5
Beginning on October 1, 2008, all plaintiffs asserting medical malpractice claims
under the TMMA must comply with a notice requirement.4 This requirement provides, in
pertinent part, that:
Any person, or that person's authorized agent, asserting a potential
claim for medical malpractice shall give written notice of the potential
claim to each health care provider who will be a named defendant at
least sixty (60) days before the filing of a complaint based upon
medical malpractice in any court of this state.
T.C.A. § 29-26-121(a)(1). Section 29-26-121(b) of the TMMA provides that if a complaint
“is filed in any court alleging a claim for medical malpractice, the pleadings shall state
whether each party has complied with [the pre-suit notice requirement] and shall provide
such evidence of compliance as the court may require.” Id. § 29-26-121(b). The TMMA
also permits courts to exercise “discretion to excuse compliance with [the pre-suit notice
requirement]” for “extraordinary cause shown.” Id. One court has stated that the purpose
of the pre-suit notice requirement is “to provide notice to potential parties and to facilitate
early resolution of cases through settlement.” Jenkins v. Marvel, 683 F. Supp. 2d 626, 639
(E.D. Tenn. 2010).
In addition to the notice requirement, the TMMA also provides that:
In any medical malpractice action in which expert testimony is required
by § 29-26-115, the plaintiff or plaintiff's counsel shall file a certificate
of good faith with the complaint.
4
Plaintiff filed the complaint on November 23, 2010.
6
T.C.A. § 29-26-122(a). Expert testimony is required under § 29-26-115 except where the act
of alleged malpractice lies within the knowledge of ordinary laymen. See Kenyon v. Handal,
122 S.W.3d 743, 758 (Tenn. Ct. App. 2003). The certificate of good faith must show that
the plaintiff or the plaintiff's counsel has conferred with one or more competent experts, and
those expert or experts must then provide a “signed written statement” confirming that “a
good faith basis [exists] to maintain the action consistent with the requirements of §
29-26-115[.]” T.C.A. §§ 29-26-122(a)(1), (a)(2). Failure to comply with this certificate of
good faith requirement “make[s] the action subject to dismissal with prejudice.” Id. §
29-26-122(c).
Federal district courts, in considering similar pre-suit notice requirements in other
state medical malpractice statutes, have held that such requirements are substantive law to
be applied in federal diversity cases. See, e.g., Curry v. High Springs Family Practice Clinic
& Diagnosis Center, Inc., No. 1:08-cv-00008-MP-AK, 2008 WL 5157683, at *9 (N.D. Fla.
Dec.9, 2008) (“Federal courts typically consider pre-suit notice requirements to be
substantive laws, rather than procedural laws, for Erie analysis.”); Redmond v. Astrazeneca
Pharmaceuticals, LP, 492 F.Supp.2d 575, 577-78 (S.D. Miss. 2007) (ruling that Mississippi's
pre-filing notice requirement for medical malpractice actions is substantive law). In addition,
in reviewing other states’ laws with requirements similar to the TMMA’s pre-suit notice
requirement, district courts within the U.S. Court of Appeals for the Sixth Circuit have held
that the requirement of a state law certificate or an affidavit of good faith in state law medical
malpractice claims is substantive law that applies in diversity cases. See, e.g., Nicholson v.
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Collins, No. 1:09cv137, 2009 WL 4147884, at *3 (S.D. Ohio Nov. 23, 2009) (holding that
an Ohio law requiring medical malpractice claims to be accompanied by an affidavit of merit
from an expert witness was substantive law to be applied in a diversity case); Lee v. Putz, No.
1:03-CV-267, 2006 WL 1791304, at *4 (W.D. Mich. June 27, 2006) (holding that Michigan's
affidavit of merit statute was substantive law to be applied in a diversity case). The Court
agrees with the principles articulated by these district courts and finds that the requirements
of the TMMA are substantive law to be applied in diversity cases such as the one presently
before the Court.
1.
Plaintiff’s Claim for Medical Malpractice
Plaintiff has alleged that Summit View breached the applicable standard of medical
care by failing to “provide access . . . to an interpreter[,]” and “take proper care of Adkins,
including placing her in a suitable room, properly caring for [her] pre-existing emphysema
and cancer, and promptly notifying the Nursing Home Physician of the progression of [her]
condition” [Doc. 1, ¶ 12].
The Court finds these alleged negligent acts or failures to act bear a “substantial
relationship” to the rendition of medical treatment by a medical professional, namely Summit
View, a nursing home. See In re French v. Stratford House, No. E2008-00539-COA-R3-CV,
2009 WL 211898, at *7-*8 (Tenn. Ct. App. Jan. 29, 2009) (holding that the plaintiff’s claim
was governed by the TMMA where the defendants’ alleged conduct required “decisions
relating to the care of the Deceased that necessarily involve[d] medical knowledge”).
Furthermore, plaintiff asserted in the complaint that her claims are brought under
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“Tennessee statutes pertaining to medical malpractice” [Doc. 1, ¶ 4 (emphasis added)]. The
record also includes a notice of claim letter sent by plaintiff to Summit View which states
that plaintiff’s intent was to “file a medical malpractice lawsuit” [Doc. 9-1, p. 3 (emphasis
added)]. Accordingly, because the Court finds that the aforementioned claims relate to the
alleged medical negligence of Summit View, a nursing home and its employees, and because
such claimed acts or omissions involve medical decisions and opinions, the Court concludes
that plaintiff’s claims against Summit View are governed by the TMMA.
2.
Notice Requirement
Summit View asserts that plaintiff has failed to comply with the notice requirement
provision of the TMMA. The record indicates that on September 6, 2010, plaintiff sent
Summit View a notice of claim letter [Doc. 9-1, p. 3].5 Summit View points out, however,
that while this letter gives the name of the patient, it does not contain the “date of birth of the
patient[,]” as required by § 29-26-121(a)(2)(A). Furthermore, Summit View asserts that
plaintiff has also failed to include an affidavit demonstrating proper service by mail as
required by § 29-26-121(a)(4). In response, plaintiff asserts that she has complied with the
notice requirement provision, stating that “the statute does not specify what information must
be included . . . it may be presumed adequate written notice will include basic identifying
information of the potential plaintiff, . . . treatment at issue, and will indicate on the face of
the notice it is being sent in compliance with T. C. A. § 29-26-121” [Doc. 10, p. 2]. Plaintiff,
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At the time Adkins was still alive.
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however, provides no reference or citation to support her assertion that such compliance may
be presumed adequate.
Upon review, the Court finds plaintiff’s assertion of compliance to have no merit and
concludes that the notice of claim letter plaintiff sent to Summit View is inadequate for
purposes of the TMMA. Section 29-26-121(a)(2) provides a list of provisions that must be
included to satisfy the notice requirement, such provisions including the full name and date
of birth of the patient and the inclusion with the complaint of an affidavit for proof of service
of the notice letter. See T.C.A. § 29-26-121(a)(2). Plaintiff has failed to comply with either
provision because the notice of claim letter does not include her birth date, nor is there any
indication in the record of this case that plaintiff has filed an affidavit for proof of service.
Moreover, plaintiff has not offered the Court any “extraordinary cause” or reason for her
failure to comply with these requirements nor is the Court able to discern any cause or reason
for why plaintiff has not complied with the notice requirements or why such compliance
should be excused. The Court therefore declines to exercise its discretion and waive
compliance with the notice requirement. Accordingly, the Court finds that plaintiff has failed
to comply with the TMMA’s notice requirement.
3.
Certificate of Good Faith Requirement
Summit View also asserts that plaintiff’s medical malpractice claims are of a type that
will require expert testimony and that plaintiff has not submitted a certificate of good faith
as required by the TMMA. The TMMA’s certificate requirement exists “to ensure that suits
proceeding through litigation have some merit.” Jenkins, 683 F.Supp. 2d at 639. The TMMA
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provides that a medical malpractice claimant has the burden of proving the recognized
standard of acceptable professional practice in the profession, that the defendant acted with
less than or failed to act with ordinary and reasonable care in accordance with such standard,
and that the defendant’s act or omission was the proximate cause of the injuries to the
plaintiff. T. C. A. § 29-26-115(a).
In the instant case, expert testimony would be needed to determine the applicable
standard of medical care and whether Summit View’s alleged conduct met that standard. The
determination of whether proper medical care was provided to Adkins, and if Adkins
received proper care for her emphysema and cancer, requires knowledge greater than that of
a laymen or juror. Further, in determining if Summit View breached the applicable standard
of medical care, a medical expert would be needed to establish that standard. See Richardson
v. Miller, 44 S.W.3d 1, 15-16 (Tenn. Ct. App. 2000) (finding that establishing the
professional standard of care requires expert testimony).
It is undisputed that plaintiff has not submitted a certificate of good faith. While
plaintiff asserts that she has ninety days in which to do so, this assertion is without merit.
The TMMA expressly states that “plaintiff’s counsel shall file a certificate of good faith with
the complaint when expert testimony is required to prove a plaintiff’s claims.” T. C. A. §
29-26-122(a). Again, plaintiff has not offered the Court any explanation of “extraordinary
cause” or shown that her failure to comply with the statute is due to any failure on the part
of Summit View to timely provide copies of requested records. Accordingly, because the
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Court finds no reason to excuse plaintiff’s failure to file a certificate of good faith, the Court
concludes that plaintiff has also failed to comply with this requirement of the TMMA.
4.
Effect of Noncompliance with TMMA
Giving the foregoing, the Court finds that plaintiff has failed to comply with the
requirements of the TMMA and has therefore failed to state a medical malpractice claim for
which relief may be granted. Specifically, plaintiff did not give adequate notice to Summit
View of its intent to bring a medical malpractice claim as required by § 29-26-121, and did
not file a certificate of good faith as required by § 29-26-122. Moreover, “[t]he failure of a
plaintiff to file a certificate of good faith in compliance with this section shall, upon motion,
make the action subject to dismissal with prejudice.” T. C. A. § 29-26-122 (c). Because
Summit View has so moved, and because plaintiff has failed to state a claim pursuant to Rule
12(b)(6), the Court will dismiss plaintiff’s medical malpractice claims with prejudice. See
Maliani v. Vanderbilt Univ. Med. Ctr., No. 3:10–0235, 2010 WL 4054268, at *4-*7 (M.D.
Tenn. Oct. 12, 2010) (dismissing with prejudice a plaintiff's malpractice claim for failure to
file a certificate of good faith under the post-amendment version of the TMMA, where
jurisdiction was based on diversity).
D.
Americans with Disabilities Act (the “ADA”) Claim
By summarily stating that “defendant violated the ADA by not providing an
interpreter for Adkins[]” [Doc. 1-1], plaintiff also appears to attempt to allege a violation of
the ADA. The complaint, however, never expressly states or cites any statutory basis for the
alleged violation. Construing the complaint in the light most favorable to plaintiff, it appears
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that she is attempting to bring a claim under Title III of the ADA, the provision pertaining
to Public Accommodations and Services Operated by Private Entities. See 42 U.S.C. §
12182. However, even if plaintiff could establish that Summit View violated Title III, that
claim fails because a plaintiff is not entitled to monetary damages or a trial by jury under
Title III.6
When an action is brought by a “person who is being subjected to
discrimination[,]” Title III does not provide for monetary damages or, concomitantly, a jury
trial. 42 U.S.C. § 12188(a)(2). See also Gonzales v. National Bd. of Med. Examiners, 225
F.3d 620, 635 (6th Cir. 2000) (Gilman, J., dissenting) (stating that it “appears doubtful” that
Title III plaintiffs are entitled to jury trial as Title III permits only injunctive relief) (citing
cases); Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293 (6th Cir.1999) (recognizing that
the enforcement statute for Title III, 42 U.S.C. § 12188, which incorporates the remedies of
42 U.S.C. § 2000a-3(a), does not include money damages); see also Fischer v. SJB-P.D. Inc.,
214 F.3d 1115, 1120 (9th Cir.2000) (“Monetary relief is not an option for private individuals
under Title III of the ADA. As a result, a plaintiff who files an ADA claim can at most hope
to improve access through an injunction.”). Further, entry of an injunction would be moot
in the instant case because Adkins is now deceased. “Entry of an injunction is generally
‘pointless’ if the discrimination is not ongoing.” Dudley v. Hannaford Bros. Co., 333 F.3d
299, 304 (1st Cir. 2003).
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Plaintiff requests relief in the amount of $40,000,000.00 and makes no mention of injunctive
relief. Plaintiff also demands a trial by jury.
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Plaintiff asserts in her response that showing a violation of the ADA will also serve
to show liability for medical negligence. However, even if this assertion was true, as
discussed previously, plaintiff has failed to state a medical malpractice claim because she has
failed to provide proper notice to Summit View and has failed to comply with the certificate
of good faith requirement. Plaintiff has provided no statutory or case law to show otherwise.
Further, plaintiff does not provide any statutory or case law indicating that she could proceed
on a claim under Title III or any other provision of the ADA. Accordingly, plaintiff’s ADA
claim will also be dismissed for failure to state a claim pursuant to Rule 12(b)(6).
III.
Conclusion
For the reasons stated herein, defendant’s Motion for Summary Judgment [Doc. 5]
will be GRANTED and plaintiff’s medical malpractice claims will be DISMISSED with
prejudice for failure to state a claim under the TMMA. To the extent plaintiff has attempted
to allege a claim for a violation of the ADA, that claim will also be DISMISSED for failure
to state a claim. An appropriate order will be entered.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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